Enforcement of Rights to Worker Representation in Community Law

Published date01 September 1995
DOIhttp://doi.org/10.1111/j.1468-2230.1995.tb02048.x
AuthorPaul Skidmore
Date01 September 1995
The
Modem Law Review
[Vol.
58
Conclusion
It is undoubtedly true that this is the most complex of all the music industry cases
in this
area,
principally because it raises such a wide variety of issues. Indeed,
some of these issues may have to be dealt with ultimately by the House of Lords,
when yet more questions could enter the fray, such as the restitutionary
consequences of the agreement being held void and/or unenforceable. It might also
provide a good opportunity for a reconsideration
of
Esso
Petroleum
Co
Ltd v
Harper’s Guruge (Stourport)
Ltdg1
and a wholesale clarification of the doctrine
of restraint of trade, on which it is, at present, extremely difficult to advise with
any confidence. It may also be that the matter will, at some stage, be referred to the
European Court for a preliminary ruling under Article
177
of the Treaty of Rome.
Assuming, therefore, that it is not settled in the meantime,
this
case seems likely to
prove highly significant in the shaping of European record companies as they
regroup to meet the technological demands of the next century. The higher courts
may be resistant to the idea of freeing Mr Michael from his contract, particularly
in view of the potentially disastrous effects it may have on the
UK
record industry,
but unless they can think
of
more convincing arguments than those supplied by
Parker
J,
they may have little choice.=
Enforcement of
Rights
to Worker Representation
in
Community
Law
Paul
Skidmore
*
Imagine the situation: the Council of Ministers adopts Directives’ to protect
worker interests. These Directives include an obligation on employers to inform
and consult worker representatives when they contemplate redundancies* and
before the transfer of the ~ndertaking.~ The
UK
government implements the
Directives in national law
in
a manner which does not compel all employers to
inform and c~nsult.~ Indeed, in the majority of enterprises in the
UK
the
employer is under no obligation to inform and consult because, as a matter of
national law, there are no worker representatives. The question then arises: what,
91 op
cit.
92
Postscript: At the proof stage of
this
journal
it was reported that Mr Michael has now settled his action
against Sony Music and has signed a recording contract with Virgin Records.
*Lecturer,
University
of
Bristol.
I
would like to thank
all
those who have
read
the many previous drafts of
this
piece, and in particular Aileen
McHarg for her incisive comments and encouragement.
1
Directive 79129,
OJ
1975 L48/29 (collective redundancies), Directive 77/187,
OJ
1977 M1126
(acquired rights, more usually known as ‘transfer of undertakings’).
2 Article
2,
Directive 75/129.
3
Article
6,
Directive 77/187.
4
Regulation
10,
Transfer of Undertakings (Protection of Employment) Regulations
(‘TUPE’),
SI
19811
1794, implementing Directive 77/187 and
s
188 of the Trade Union and
Labour
Relations
(Consolidation) Act 1992 (TULR(C)A), formerly
s
99
of the Employment
Protection
Act 1975 (EPA)
implementing Directive 75/129.
744
0
The Modern Law Review
Limited
1995

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